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Workers Compensation

This comprehensive and easy to follow publication assists practitioners to advise and represent clients in the highly regulated area of workers compensation.

The guide clearly explains how to obtain initial WIRO approval and funding to act for injured workers under the ILARS scheme, how to make and support an application and how to conduct matters in the Workers Compensation Commission.

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Provisions of the Workers Compensation Legislation Amendment Act 2018 amending the Motor Accident Injuries Act 2017 have commenced, removing limitations on workers injured in motor vehicle accidents obtaining statutory benefits for treatment and care under that Act where their entitlement to ...
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New South Wales
A full commentary on the law and practice as it currently applies to workers compensation.
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An angiogram is an X-ray test that uses a special dye and camera, fluoroscopy, to take pictures of the blood flow in an artery, such as the aorta, and can be used to look at the arteries or veins in the head, arms, legs, chest, back, or belly. Abduction
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New South Wales
The term ‘subpoena’ is adapted from Latin, but was never a Latin word as such. It has long been an accepted English word. The plural, used in this guide and generally, is therefore ‘subpoenas’, not ‘subpoenae’.
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This guide deals mainly with subpoenas to produce documents, subpoenas ‘duces tecum’. Much of the law related to subpoenas also applies to subpoenas to give evidence, subpoena ‘ad testificandu’, but there are important, mostly practical, differences.
A subpoena can also be both a subpoena to ...
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See s 3 and the Dictionary of the Evidence Act 1995:
“document” means any record of information, and includes:
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One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, ...
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One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ...
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Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ...
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Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ...
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At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ...
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It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as:
Out of which court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case?
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The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ...
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Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party.
Documents should not be produced until the objection is either resolved or, depending upon the nature of the objection, until ...
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In criminal cases s 225 Criminal Procedure Act 1986 provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe something, ...
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The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process.
There is extensive ...
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In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57].
There is always a difficult balancing act for a court ...
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The leading civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] NSWSC ...
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In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as:
Re Trade Practices Commission v Arnotts Limited; Arnott’S Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248;
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Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ...
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Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek ...
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A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP.
Where a subpoena causes unreasonable trouble and expense to your client then an objection is ...
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Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R (“Hilton Bombing case”) [1984] HCA 85 and has frequently been claimed, ...
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There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ...
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Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. Both forms of the privilege apply the dominant purpose test: Esso Australia Resources v ...
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If the subpoena is pressed over your objection you will need to file a Notice of Motion, or an Application in a case in the federal jurisdiction, asking for an order to set it aside and/or seeking orders that your client be excused from producing any material on an appropriate ground, for example, ...
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In civil cases Part 33 Uniform Civil Procedure Rules 2005 contains the provisions relating to subpoenas.
In criminal cases subpoenas are covered in s 220 - 232 Criminal Procedure Act 1986.
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A subpoena is a tactical tool in litigation, but should be employed as part of the overall strategy. A subpoena allows you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ...
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In short – not too early, but not too late!
As noted above, the subpoenas that need to be issued initially will become evident from your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ...
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Applying to the court
You can issue a subpoena by attending at the registry, or filing online. You should provide the court with sufficient copies to allow for you, the recipient, the court and all parties to the litigation to receive one. A subpoena can be issued out of any registry of the ...
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Who is the right recipient
Subpoenas need to be addressed to a person.
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Scenario: Your client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ...
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Always check the specific rules for service for the court where you are issuing the subpoena: see the links to court websites in Power to Issue a Subpoena above or Further Information below.
Generally, subpoenas require personal service, unless they are directed to police or other public ...
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An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 and s 224 Criminal Procedure Act 1986.
Conduct money ...
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In criminal proceedings, only a party to the proceedings can seek or obtain a costs order. A third-party recipient of a subpoena is not a party: s 221 Criminal Procedure Act 1986.
This effectively means there are no costs sanctions for a criminal defendant issuing numerous and objectionable, ...
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A subpoena is a court order requiring production of stated documents to the court. Even if you object, unless the objection is for oppression or relates to a claim of privilege, in which case see Hancock v Rinehart (Privilege) [2016] NSWSC 12 and the discussion of legal professional privilege ...
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It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ...
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As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ...
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When a subpoena is issued the documents are produced to the court, not to you. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court proceedings, will respond to a subpoena ...
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It is important to know how access orders are dealt with in different courts. In the Supreme Court, for example, unless any objection is made to the court at the time of production, the access order that will apply is the one noted on the subpoena by the issuing party, otherwise general access ...
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Guidelines for claiming workers compensation Workers compensation benefits guide
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In the event of a work related injury or disease the workers compensation system in New South Wales provides certain limited benefits to workers and their dependants.
Legislation
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Each party is required to pay their own costs relating to any claim for compensation, including proceedings in the Workers Compensation Commission.
The only exception to the above rule is where a claim was made before 1 October 2012 and proceedings were commenced in the commission prior to 31 ...
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On 1 September 2015, the regulatory and insurance functions of WorkCover were assumed by three new organisations: the State Insurance Regulatory Authority (SIRA) for workers compensation regulation, SafeWork NSW for work health and safety regulation and Insurance and Care NSW (icare) for workers ...
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Any workplace injury must be reported to the employer as soon as possible.
The employer should then notify the insurer or icare about the injury within 48 hours. Clause 3 of Schedule 3 of the Workers Compensation Regulation 2016 provides that this notification must be through electronic means or ...
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Provisional compensation
Within 7 days of receiving an injury notification the insurer will either approve and commence the payment of provisional weekly compensation for up to 12 weeks, or provide a written explanation as to why they decline to do so.
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Where an employer is uninsured, the injured worker can make a claim upon the nominal insurer scheme created under the Workers Compensation Act 1987.
Enquiries about whether an employer holds insurance can be made directly to icare by telephoning the Claims Branch Helpline on 1800 221 960.
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It is usually good practice to obtain a statement from the client at an early stage of any claim, setting out:
details of pre-accident health and injuries;
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The essential difference between an agreement and a deed is that of consideration.
An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000.
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An indemnity clause provides that the indemnifier will pay liabilities incurred by the indemnified party as a result of performance of the contract. For example, a principal may indemnify their agent for any liability incurred while carrying out their duties. Indemnity clauses are often included ...
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Statement of the client
It is usually good practice to obtain a statement from the client at an early stage of any claim, setting out:
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Section 11 Workers Compensation Act
If a worker receives a personal injury during a temporary absence from his place of employment - for example, at lunch time, or morning or afternoon tea time - the injury is deemed to have arisen out of or in the course of his employment.
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Section 10 Workers Compensation Act
Workers injured when travelling between home and work are covered only if there is a 'real and substantial connection' between the employment and the accident or incident out of which the personal injury arose.
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The compulsory third party insurance scheme for motor vehicle accidents in NSW, administered under the Motor Accident Injuries Act 2017 (MAIA), operates in conjunction with the workers compensation provisions under the 1987 Act, as amended in 2018. No double-dipping is permitted! Injured workers ...
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Section 9B Workers Compensation Act
Heart attacks, strokes and injuries relating to these conditions are not covered unless the nature of the employment gave rise to ‘significantly greater risk'.
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Section 17 Workers Compensation Act
Boilermakers deafness, or ‘industrial deafness’, arises from an overexposure of a worker to high intensity noise levels in the course of employment. This deafness can be a gradual process occurring over many years, and may involve several employers.
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Sections 15 and 16 Workers Compensation Act
The changes to the Act provide that a disease is only covered if the employment was the main contributing factor to worker’s contracting the disease or to the aggravation, acceleration, exacerbation or deterioration of the disease.
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Section 65A Workers Compensation Act
Workplace stress which is intense and goes on for some time may lead to mental and physical ill health which constitutes ‘psychological injury’.
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Section 66 of the Workers Compensation Act 1987 provides that a worker who receives a work injury causing permanent impairment is entitled to receive compensation for that permanent impairment, in addition to any other compensation payable under the Act.
The amount of permanent impairment ...
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An injured worker may be referred for medical assessment by an approved medical specialist in circumstances where there is a dispute about the degree of the worker’s permanent impairment, or where an arbitrator requires a medical assessment prior to determining any other dispute.
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The medical assessment process involves the injured worker being examined by an approved medical specialist agreed to by the parties or, failing such agreement, appointed by the Registrar.
The injured worker and the worker’s legal representative are advised by the commission in writing of the ...
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Only one assessment may be made of the degree of permanent impairment of an injured worker. See s 322A Workplace Injury Management and Workers Compensation Act.
Unless set aside by a successful appeal, the medical assessment certificate given by an approved medical specialist for an injured ...
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Circumstances where an appeal cannot be made
Pursuant to s 327(7) Workplace Injury Management and Workers Compensation Act an appeal cannot be made against a medical assessment once the dispute concerned has been the subject of:
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Weekly benefits
Section 33 of the Workers Compensation Act provides for payment of weekly benefits to a worker for specified periods of total or partial incapacity arising from a work injury.
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The minimum weekly compensation payment for workers with permanent impairment of more than 30 per cent is indexed twice a year. The current amount is published within Regulation 6 of the Workers Compensation (Indexation of Amounts) Order 2013.
There is no time cap on payment of weekly benefits, ...
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Sections 25 and 26 Workers Compensation Act 1987
Persons who are wholly or partly dependent on the worker or, if there are no dependants, the estate of a worker who dies on or after 24 October 2007 as a result of a workplace injury that occurred on or after 30 June 1987 are entitled to:
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From 29 April 2016, new employment assistance and return to work assistance is available.
For workers returning to work with a new employer (for a period of 3 month or greater), the pre-injury employer may be liable to pay compensation for the cost of work assistance provided to assist the worker ...
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Section 87D of the Workers Compensation Act defines a ‘commutation agreement’ as an agreement to commute a liability into a lump sum, as provided by s 87F.
The provisions of Division 9 Commutation of compensation permit an insurer, an employer, and an injured worker to make an agreement that the ...
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Notice
Section 74 of the Workplace Injury Management and Workers Compensation Act 1998 provides insurers are to give notice and reasons when liability is disputed.
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Under new s 287A a worker may request an insurer to review: a work capacity decision of the insurer that is disputed by the worker; or
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Disputes about work capacity decision by an insurer may be reviewed by the insurer at the worker’s request or referred to the Workers Compensation Commission – new s 289(1) of the 1998 Act, either before an insurer review. Referral to the Commission operates as a stay of the disputed work capacity ...
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Currently s 74 of the Workplace Injury Management and Workers Compensation Act 1998 requires insurers to give notice and reasons for disputing liability in respect of any claim. On commencement of 2018 amendments Division 3 of the Workplace Injury Management and Workers Compensation Act 1998, which ...
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The Workers Compensation Independent Review Office (WIRO) has five main functions:
to consider complaints about insurers;
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The Workers Compensation Commission is an independent body which resolves workers compensation disputes between injured workers and employers.
A number of restrictions apply to when and by whom a dispute may be referred to the commission: see ss 289 and 289A. For example, any party to a dispute ...
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The Workers Compensation Commission has provided an online lodgement facility since October 2010.
The benefits of electronic lodgement include:
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An injured worker may seek an interim payment direction by the Workers Compensation Commission to an insurer to pay weekly benefits for a period of not more than 12 weeks and/or to pay medical expenses compensation by filing an Application for Expedited Assessment.
For information about ...
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Filing the application
The form Application to Resolve a Dispute is used for the majority of disputes including:
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Filing the application
The form Application to Resolve a Dispute is used for the majority of disputes including:
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Preliminary procedure
An arbitrator is usually assigned to the dispute by the commission and a teleconference is arranged.
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If the applicant wishes to discontinue, an Election to Discontinue Proceedings needs to be lodged and served upon all the parties involved in the matter.
If the parties to a dispute agree that the proceedings should be discontinued, an Agreement to Discontinue Proceedings needs to be lodged and ...
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The provisions of rule 16.2 of the Workers Compensation Commission Rules 2011 and s 352 of the Workplace Injury Management and Workers Compensation Act 1998 apply to appeals against the decision of an arbitrator.
In summary:
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Outline
An injured worker is eligible to make a work injury damages claim if the worker has an assessed whole person impairment of at least 15%, and the injury was caused by the employer’s negligence.
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Relevant particulars
The worker must first supply all relevant particulars about the claim to the employer and the insurer.
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A successful work injury damages settlement or judgment cancels all further entitlements to workers compensation benefits including lump sum payments, weekly payments, medical, hospital and rehabilitation expenses.
Damages are paid as one lump sum and only cover the loss of past and future ...
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Return to work obligations
The obligations placed upon the injured worker to return to work were increased by the 2012 reforms.
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‘Work capacity’ was a major focus of the 2012 reforms. The legislative emphasis changed from ‘incapacity’ (what an injured worker cannot do) to ‘capacity’ (what the injured worker can still do).
Work capacity assessments and work capacity decisions are the primary claims management activities ...
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Obligations
The Workplace Injury Management and Workers Compensation Act places obligations upon both the employer and the worker in relation to the worker's timely return to work.
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